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Popular Participation in the Constitution of the Illiberal State--An Emory International Law Review Volume 34 Issue 1 2020 Popular Participation in the Constitution of the Illiberal State--An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0 Larry Catá Backer Flora Sapio James Korman Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr Recommended Citation Larry C. Backer, Flora Sapio & James Korman, Popular Participation in the Constitution of the Illiberal State--An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0, 34 Emory Int'l L. Rev. 183 (2020). Available at: https://scholarlycommons.law.emory.edu/eilr/vol34/iss1/1 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. BACKERSAPIOKORMANPROOFS_2.3.20 2/10/2020 9:53 AM POPULAR PARTICIPATION IN THE CONSTITUTION OF THE ILLIBERAL STATE—AN EMPIRICAL STUDY OF POPULAR ENGAGEMENT AND CONSTITUTIONAL REFORM IN CUBA AND THE CONTOURS OF CUBAN SOCIALIST DEMOCRACY 2.0 Larry Catá Backer* Flora Sapio** James Korman*** No necessity can be more urgent and imperious, than that of avoiding anarchy.... Traced to this source, the voice of a people—uttered under the necessity of avoiding the greatest of calamities, through the organs of a government so constructed as to suppress the expression of all partial and selfish interests, and to give a full and faithful utterance to the sense of the whole community, in reference to its common welfare—may, without impiety, be called the voice of God.1 INTRODUCTION Is it possible to speak of democracy in illiberal states?2 Is it possible to * Member, Coalition for Peace and Ethics Working Group on Cuba; W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs, Pennsylvania State University, Contact: 239 Lewis Katz Building, University Park, PA or [email protected]. My thanks to my research assistants, Miaoqiang Dai (SIA 2019), Dr. Shan Gao (Penn State SJD 2018), and the members of the Coalition for Peace and Ethics, for their support and feedback. Portions of the theoretical foundation of this article were presented at the Annual Meeting of the Association for the Study of the Cuban Economy, July 2018. ** Member, Coalition for Peace and Ethics Working Group on Cuba, Università degli Studi di Napoli “Orientale” (Italy). *** Member, Coalition for Peace and Ethics Working Group on Cuba, Pennsylvania State School of International Affairs (MIA 2019). 1 JOHN C. CALHOUN, UNION AND LIBERTY: THE POLITICAL PHILOSOPHY OF JOHN C. CALHOUN 34 (Ross M. Lence, ed., Liberty Fund 1992 (1856)). 2 The concept of “liberal democracy” is easy enough to state and well supported by a vast academic literature, and yet “liberal democracy” as existing in the West has taken many different forms, leading some scholars to state that “the meaning of ‘liberal democracy’ and the liberal-democratic discourse has been an ever- developing and ever-changing one.” SYLVIA CHAN, LIBERALISM, DEMOCRACY AND DEVELOPMENT 14 (2002). See generally EAMONN CALLAN, CREATING CITIZENS: POLITICAL EDUCATION AND LIBERAL DEMOCRACY (1991) (discussing the theory of liberal democracy); PATRICK DUNLEAVY, THEORIES OF THE STATE: THE POLITICS OF LIBERAL DEMOCRACY 4–6 (1987) (discussing the same); STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY Ch. 1 (1995) (discussing the same). Deviations from prevailing definitions are usually classified as variations of illiberal states or systems, which are therefore not democratic. See, e.g., TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 10 (2003); Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. REV. 78, 122 (2018). It is worth noting, though, that this flowering of orthodoxy has been driven by many academics and policymakers deeply invested in the ideologies of “liberalism” as classically understood, and with that ideology BACKERSAPIOKORMANPROOFS_2.3.20 2/10/2020 9:53 AM 184 EMORY INTERNATIONAL LAW REVIEW [Vol. 34 develop a space for popular participation in a Party-State political system?3 Can such civic spaces exist beyond the direct control and management of the Party- State apparatus? Might civic spaces have some effect where a society is asked to reform its constitutional order? If asked by Western intellectuals at all, these are the sort of questions that are presented rhetorically. They are uttered symbolically to suggest the difference between contemporary—and idealized—exemplars of liberal democratic orders and the less desirable or broken systems of illiberal “democratic” constitutional orders.4 Yet these are questions that are worth taking seriously. The object of such inquiry ought not be the attempt at the construction of yet another variant of strategies for getting illiberal democratic or constitutional orders to be more like us. Rather the object ought to be to examine the possibility that, within their own premises, non-liberal democratic constitutional orders might create, tolerate, or embed a measure of direct popular participation in some form.5 More interesting, is the relationship between the formal construction of popular participation of this sort and the robustness of its actualization. Thus, in the study of illiberal democratic constitutional orders, it is necessary to consider the extent of a formal space for participation, and its effectiveness as implemented. The question is not merely academic or theoretical. Nor are the issues confined to the laboratory of historical failures. In 2018, the Marxist-Leninist political order of Cuba attempted to cap off a nearly decade long effort to revise its political and economic order by amending its 1976 Constitution.6 That amendment process, though heavily curated by the Partido Comunista Cubano a set of quite specific guiding premises about the precise practices of “democracy” has been formulated. See, e.g., NORMAN DORSEN, MICHEL ROSENFELD, ANDRÁS SAJÓ, SUSSANE BAER & SUSANNA MANCINI, COMPARATIVE CONSTITUTIONALISM: CASES AND MATERIALS (3rd ed., 2016). 3 For the purposes of this article, a Party-State system refers to a political, economic and social system in which political leadership is vested in a vanguard, usually Communist, Party, which exercises authority over and guides the operation of the administrative organs of government. The People’s Republic of China represents an influential variation of the model. See Larry Catá Backer, Party, People, Government and State: On Constitutional Values and the Legitimacy of the Chinese State-party Rule of Law System, 30 BU INT'L L.J. 331, 332 (2012). Cuba represents another. See LARRY CATÁ BACKER, CUBA’S CARIBBEAN MARXISM: ESSAYS ON IDEOLOGY, GOVERNMENT, SOCIETY, AND ECONOMY IN THE POST FIDEL CASTRO ERA Ch. 2 (2018) [hereinafter CUBA’S CARIBBEAN MARXISM] (on file with author). 4 See Fareed Zakaria, The Rise of Illiberal Democracy, 76 FOREIGN AFF. 22, 22–24 (1997). 5 See generally Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113 PA. ST. L. REV. 671, 730–32 (2008) (discussing the authors’ view of constitutions and constitutional orders from a theoretical perspective). 6 Mark Frank, Cuba’s Proposed New Constitution: What Will Change, REUTERS (Aug. 13, 2018, 11:54 AM), https://www.reuters.com/article/us-cuba-constitution-explainer/cubas-proposed-new-constitution-what- will-change-idUSKBN1KY1UC. BACKERSAPIOKORMANPROOFS_2.3.20 2/10/2020 9:53 AM 2020] AN EMPIRICAL STUDY OF POPULAR ENGAGEMENT 185 (PCC) was itself to be legitimated both by a heavily managed process of formal commentary on the constitutional draft and thereafter by a popular plebiscite seeking voter approval of the final version.7 The results of the Cuban constitutional referendum, held Sunday, February 24, 2019, were not unexpected—a large majority of Cuban voters affirmed the changes to the Cuban constitution.8 Yet almost three quarter of a million voters—9% of the more than 7,800,000 voters—voted no, while over 4% of the ballots were deemed irregular.9 The positive vote was lower than the previous positive vote obtained for the last constitutional revision project in 1976.10 The results produced the usual (over)reactions from supporters and critics of the current government and its political principles.11 But more telling was the quite lively popular debate that occurred around the margins of the official performance of popular consultation. That official consultation was implemented through a set of stylized consultations, and the product of those consultations producing a final document were then submitted for and popular affirmation through plebiscite, that is, through the vote of the entre Cuban electorate to vote for or against the adoption of the revised constitution.12 It is from a deeper study of those margins, not merely tolerated but in a sense supported by the state apparatus through its social media, that one might be able to theorize an emerging and quite distinct practice of popular participation within the structures of an illiberal constitutional state. A. The Cuban Context Narrations of Cuba’s trajectory of political development start by observing how from 1959 to 1976 Cuba was without a formal constitution. In 1959, Cuba adopted Ley Fundamental, but this document is generally seen as lacking the 7 The popular plebiscite was held on February 24, 2019 and convened on December 22, 2018. See Convocan a Referendo Sobre Nueva Constitución Cubana, BOHEMIA (Dec. 22, 2018), http://bohemia.cu/ nacionales/2018/12/convocan-a-referendo-sobre-nueva-constitucion-cubana/. 8 Comisión Electoral Nacional, Informe de la Comisión Electoral Nacional Sobre los Resultados Finales de la Votación en Referendo Constitucional del 24 de Febrero del 2019, CUBADEBATE (Mar. 1, 2019), http://www.CubaDebate.cu/noticias/2019/03/01/comision-electoral-nacional-fija-cifras-definitivas-90-15-de- electores-votaron-en-referendo-constitucional/#.XM2mPqZ7kyk.
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